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This paper is a chapter for a forthcoming book, Prosecuting the Bush Administration: What Does the Rule of Law Require? The book does not debate whether the Bush administration violated the law in the course of the War on Terror and the wars in Afghanistan and Iraq through such actions as torture. Rather, it assumes for purposes of debate that violations of the law occurred, and asks, if that is so, whether the rule law requires prosecution.

This contribution takes this question as an occasion to examine the tangled relationship between three essentially contested concepts: democracy, the rule of law, and transitional justice. It proceeds fairly unsentimentally, assuming that these concepts are not especially helpful as simple invocations and that they should be viewed as pragmatic rather than metaphysical goods. It makes two main arguments. The first, which many other critics share, is that transitional justice consists largely if not entirely of a pragmatic and political balance between democracy and the rule of law. It requires a consideration of what I call the “costs of settlement” - a balancing of past investments in and future costs to the stability and viability of both democracy and the rule of law. As such, both transitional justice and the “rule of law” itself, despite the latter term’s usual assumption of universality, may require different approaches and different compromises in different societies.

The second argument concerns the relationship between democracy and the rule of law. Many theorists treat these goods as distinct, if related, concepts, and tend to treat the rule of law in largely juridical terms, assuming that the rule of law demands the remedy of law, particularly in a prosecutorial form. This approach tends to miss something important. It fails to recognize that there may be a distinction between the rule of law and its implementation; and it obscures or neglects the possibility of treating democracy itself as one method of implementing the rule of law. The rule of law can be and, especially in stable democratic societies, often is implemented not just by and within the juridical process, but in the ordinary operation of the political process itself. Those critics of the Bush administration who argue that the rule of law demands a prosecutorial response to that administration’s allegedly lawless actions may neglect the degree to which the very fact of the administration’s passage out of power has itself provided a sufficient response, albeit perhaps an incomplete one. Democracy, in short, can be seen not as distinct from the rule of law, but as a form of the rule of law. I argue that, given the balance of the costs of settlement in this case - that is, the potential costs to both democracy and the rule of law of proceeding by a juridical route rather than through the ordinary political process - it may be that the democratic process has provided an adequate response to the Bush administration's alleged misdeeds, and that a prosecutorial approach would involve more costs than benefits for both democracy and the rule of law.

Date posted: November 9, 2009

Suggested Citation

Horwitz, Paul, Democracy as the Rule of Law (November 9, 2009). PROSECUTING THE BUSH ADMINISTRATION: WHAT DOES THE RULE OF LAW REQUIRE? Nasser Hussain & Austin Sarat, eds., Forthcoming; U of Alabama Public Law Research Paper No. 1502801. Available at SSRN: http://ssrn.com/abstract=1502801